Second Update to Report on “The Federalist Society’s Takeover of George Mason University’s Public Law School”

Public records obtained through the Virginia FOIA continue to uncover how Leonard Leo and the Federalist Society are exerting influence over George Mason’s public law school, including in hiring faculty. New records further show that, despite the revelations by UnKoch My Campus and Transparent GMU about the conditions that the Koch Brothers were imposing on educational programs, the University continues to accept large gifts with express political conditions that are inconsistent with the University’s mission.

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I. The Continuing Influence of Leonard Leo, Executive Vice President of the Federalist Society, Over GMU’s Public Law School.

A 5/21/19 Washington Post article links Leonard Leo, the Executive Vice President of the Federalist Society who has been overseeing the Scalia Law School as President of the “BH Fund,” to an astonishing $250 million in anonymous “dark money” contributions in 2014-2017. The Washington Post calls him the “maestro” of such funding. In a March 2018 email to the Paul Singer Foundation secured under the Virginia FOIA, Dean Henry Butler refers to Leonard Leo as “LL” and states that the “Anonymous [Donor] is [LL]’s friend” and that “[LL]’s Friend contributes $4,400,000 per year to Scalia Law” (p. 1). Multiple sources identify Rebekah Mercer, the daughter of hedge fund billionaire Robert L. Mercer, as Leonard Leo’s “friend” and benefactor. Beginning in 2013, the Mercers donated nearly $6 million to the Federalist Society over a three-year period. Rebekah Mercer has been called “the most powerful woman in GOP politics,” and she and her father were the largest contributors to the 2016 Trump campaign. They also financed Cambridge Analytica, the data analytics company that infamously misused Facebook data for the 2016 Trump campaign. In addition, the Mercers were responsible for recommending Steve Bannon and Kellyanne Conway, both of whom were already financially tied to the Mercers, to co-manage the final stages of the Trump campaign.

The BH Fund which Leonard Leo has set up as the third-party beneficiary to oversee the Law School is a Section 501(c)(4) organization whose “mission” is not charitable purposes but “[t]o promote ... limited, constitutional government” (12/20/18 Documents, p. 8). Mr. Leo has given many speeches and interviews voicing his views that “limited, constitutional government” means overturning specified decisions from the last “sixty years” by the “Warren and Burger” courts, including Roe v. Wade, administrative law cases like Chevron v. Natural Resources Defense Council, due process cases like Miranda v. Arizona, and other privacy cases like Griswold v. Connecticut. Mr. Leo serves on the boards of Rebekah Mercer’s “Reclaim New York” organizations, whose stated purpose is to “confront the insidious spread of socialist ideas through direct advocacy and the support of a statewide citizen army.” More recently, Axios reported on how “Leonard Leo and other Federalist Society stalwarts were shocked and floored by how weak President Trump’s cave in his fight for a citizenship question on the 2020 Census” was. But when the Washington Post asked Mr. Leo about the purpose of the BH Fund, he responded by innocuously and inaccurately saying the “BH Fund is a charitable organization, you can look it up. I’m sure its statement of purpose is listed.”

The March 2016 Grant Agreement with the Anonymous Donor provides that unless the BH Fund and the Anonymous Donor are, in their “sole and absolute discretion,” satisfied that the Law School is fulfilling the Mission described in the Grant Agreement, the Donor and the BH Fund have the right to “terminate th[e Grant] Agreement” and end the annual $4 million per year payments (12/20/18 Documents, p. 1). An October 9, 2018 “Gift Agreement Report” by a George Mason University internal review committee, established after the UnKoch revelations, has flagged these provisions as “problematic,” stating that “gifts cannot contain conditions that require notifications to the donor beyond normally accepted stewardship practices” (12/20/18 Documents, p. 230).

Since 2017, Mr. Leo has stepped up the pace of his spending both to exert influence on the Law School and political campaigns and for his personal interests. Much of this spending appears to be funded by over $4 million in income in 2017-2018 that he and the groups he has established receive for “consulting” and “public relations” from the network of organizations that he controls. In 2017, a Leo-controlled organization, the Judicial Education Project, donated $800,000 to the Scalia Law School (p. 236). A March 2018 email from Dean Butler states that “LL” “contributed $150,000 in FY2018” for the Law and Economics Center’s Federal Judges Initiative “to help us staff up in advance of major expenditures in FY2019” (p. 1). (The FJI’s stated purpose is to train Trump-appointed judges in, among other things, the “tricks agencies to portray their proposed regulations as having substantial benefits.” (12/20/18 Documents, p. 62)) In the last four months, Mr. Leo made political contributions totaling $29,000, to Republican Senatorial candidates, including the maximum contribution for Susan Collins’ re-election in Maine after her critical vote to confirm Justice Kavanaugh. For his personal interests, Mr. Leo purchased a 11-bedroom summer beach house in Maine in October 2018, which he describes as “a retreat for our large family and for extending hospitality to our community of personal and professional friends and co-workers.” That summer home was purchased for $3.3 million and is now assessed at $4.15 million. The mansion previously belonged to the family of J. Peter Grace, the longtime chair and CEO of the W.R. Grace Co. Mr. Leo shares connections to conservative Catholic organizations with the J. Peter Grace family. “As reported by the Maine Beacon, Mr. Leo held a private campaign fundraiser at his summer mansion for Susan Collins on August 9, 2019, with protestors outside holding signs reading “Collins: Coming for your bribe?”

Since the last update on the Federalist Society takeover, the Law School has hired more professors associated with the Federalist Society, including Sean O’Connor, the new Executive Director of the Center for the Protection of Intellectual Property (p. 371). In July 2019, the Law School hired Peter Davidson, the Commerce Department General Counsel who was deeply involved with the “citizenship question” on the 2020 U.S. Census, the rationale for which the Supreme Court called “contrived” and “pretextual.” Dean Butler appointed Mr. Davidson as Deputy Dean for Strategic Initiatives even though he lacks any experience in legal education and has no record of legal scholarship.

In the past two years, the Dean has hired as visiting professors three Supreme Court justices who were members of the Federalist Society. In March 2019, Justice Kavanaugh was hired as a Distinguished Visiting Professor to teach a two-week summer course for the next three years in Runnymede, England on the “Creation of the Constitution.” George Mason’s President refused to reconsider the Dean’s hiring decision despite a student petition with over 15,000 signatures against hiring faculty with credible allegations of sexual assault. Justice Gorsuch has been hired to teach a summer course on “National Security and the Separation of Powers” in Padua, Italy, and to lead a “Case Analysis Seminar” for the Law and Economics Center’s Judicial Education Program in 2020, over which the Law School’s Dean has assumed control (p. 371-72). Justice Clarence Thomas has also been hired to co-teach a seminar on Administrative Law (p. 371). A new Advisory Opinion No. 116 has been issued by the Committee responsible for the Code of Conduct for United States Judges about a judge’s duty to know who the donors or funders are for the programs in which they participate.

In May 2019, Dean Butler announced he is resigning as Dean of the Law School effective in June 2020 (p. 237). GMU’s President Angel Cabrera, who himself resigned effective at the end of August 2019, has privately notified the Anonymous Donor of Dean Butler’s resignation so they can consider whether the candidates to replace him will “advanc[e] the School Mission” as defined in the 2016 Grant Agreement (p.375).

Mr. Leo continues to serve as a “co-host” for Scalia Law School events with Dean Butler, as he did in October 2016 for the “Tribute to Justice Antonin Scalia” fundraising dinner and in October 2018 for a private luncheon following the unveiling of the Scalia statue at the Law School. In April 2019, Mr. Leo co-hosted a reception and dinner with Dean Butler for the “Unveiling of the Federalist Society’s Antonin Scalia Bust” at the National Arts Club in New York City (p. 374).

II. In Contravention of its Updated Gift Acceptance Policies, GMU Accepted a $50 Million Gift in 2019 That Is Conditioned on Endowing Law Professors Who Will “Promote the Conservative Principles of Governance.”

Additional public records requests to GMU reveal that a $50 million bequest in March 2019 by Dorothy Rouse of Redwood City, California, to the Scalia Law School contained conditions that GMU should not have accepted under the gift acceptance policies that were updated after the revelations by UnKoch My Campus and Transparent GMU about the conditions the Koch Brothers were imposing on their grants to the University. The bequest from Mrs. Rouse, who had no connection with the Law School, is conditioned on endowing up to 13 or 14 faculty “chairs that will promote the conservative principles of governance, statesmanship, high morals, civil and religious freedom and the study of the United States Constitution” (p. 241). GMU did not reveal these conditions in its March 7, 2019 press release on the bequest, nor have these conditions been disclosed in any other press release. Instead, the press release describes this as simply a gift by “an enthusiastic fan of Justice Scalia” “to support 13 new faculty chairs.”

The conditions on hiring faculty “to promote the conservative principles of governance” present multiple violations of GMU’s gift acceptance policy, which requires gifts to be “consistent with the University’s values and policies,” including its mission of “developing and maintaining “an innovative and inclusive academic community committed to securing a more just, free, and prosperous world.” The gift policy states that the “University shall not accept any Gift that ... impairs the University’s ability to define and pursue its mission” or that “presumes or requires a particular result or conclusion of scholarly work.” GMU has withheld the complete terms of Mrs. Rouse’s living trust, including whether changes to her bequest could be made to modify these restrictions.

Despite the University’s failure to apply its gift acceptance policy to this bequest or to modify the bequest to conform with the University’s mission, the Law School has already modified this bequest in two important respects. On August 1, 2019, GMU announced that Mrs. Rouse’s bequest has been used in part to endow the deanship of Dean Henry Butler, and thereby finance a salary increase for him. No explanation was offered of how this is consistent with Mrs. Rouse’s bequest to endow a faculty “chair or chairs.” A January 2019 “Scalia Law Mid-Year Update” by Dean Butler further reveals that the bequest for the endowed chairs, which the bequest requires “to bear the names of ALLISON and DOROTHY ROUSE, and [be] in their memory,” has been modified to put their naming opportunities up for sale at $1 million each (p. 371). Any donations in exchange for those naming opportunities could be used for other purposes, e.g., to fund George Mason’s ultra-conservative centers like the Center for the Study of the Administrative State (just as the Dean has already redirected part of the “scholarship” money that was received in exchange for renaming the Law School).